You have to be careful when you hit the keyboard with a passion to defend your buddy. Boston Cop Justin Barrett has been suspended and is on his way to being sacked for this email, which has some gems. (The full text of the email is at the bottom of this post.) Even for those of us who don’t eat bananas in the jungle, the Barrett Email has some lessons for how to behave when confronted by an earnest expression of police interest:

Your defense of Gates while he is on the phone while being confronted [INDEED] with a police officer is assuming he has rights when considered a suspect. He is a suspect and will always be a suspect. His first priority of effort should be to get off the phone and comply with the police, for if I was the officer he verbally assulated like a banana-eating jungle monkey, I would have sprayed him in the face with OC deserving of his belligerent non-compliance.

There is just a lot to be learned from that comment, isn’t there? If you are a “suspect,” you have no rights, and anything other than responding to the cop’s inquiries is a form of “belligerent non-compliance.” In one way, the claims of Barrett and his lawyer that this was not a racist comment bear some additional consideration. In fact, if the “suspect” were a slightly intoxicated banker fumbling with the keys to his house, or a venerable Irish Monsignor responding to questions about pedophile activity, a different set of Boston police protocols might kick in, but for your average citizen, the failure to stand and deliver when addressed by a police officer may well ignite uncontrollable rage. And an angry cop can arrest just about anyone for no reason and let his “suspect” deal with the consequences.

The Fourth Amendment seems to be missing in action in this discussion. It guarantees our right to be free from unreasonable “searches and seizures,” and in the famous case of Payton v. New York, the U.S. Supreme Court held that the arrest of a murder suspect in his home without a warrant was unconstitutional. A person’s home is accorded special protection under our constitutional jurisprudence. Sgt. Crowley, who arrested Professor Gates, was violating the Fourth Amendment when he allowed his anger to get the better of him. Now Justin Barrett’s unintentionally honest defense of his fellow-officer has confirmed the arrogant attitude behind Sgt. Crowley’s actions.

While Obama now wants to dissolve all the tension at his “beer summit” by lifting a cold one in the company of Gates and Crowley at the White House, it seems the truth just wants to ventilate itself. And the truth is that when police get hot-headed, our rights are at risk. The Constitution and the Bill of Rights are there to rein them in, and to give us relief at the courthouse when they allow their passions to trample on our rights of dignity, freedom of movement, and freedom of speech. If I could have texted Obama an answer to give the reporters who asked him about Gates’ arrest, I would have texted this:

All American police officers are obligated to respect the civil rights of our citizens to remain safe in their homes from a warrantless arrest. If those rights were not respected in this case, then Prof. Gates would have a claim against Sgt. Crowley.

This comment would have dodged accusations of reverse racism and put the shoe on the right foot. Obama is the President of all Americans, and the Constitution and Bill of Rights protect the rights of all Americans. And don’t you forget it.

Stanley Milgram’s Obedience to Authority: An Experimental View, published in 1974, is a short book that became a must-read text for behavioral scientists by dropping the following bombshell: Ordinary people will intentionally torture other people with agonizing electrical shocks if a man in a white lab coat tells them that it’s all part of a “learning experiment.” Milgram managed to garner this information without actually shocking anyone. The “learners” being shocked were actors; the true subjects of the experiment were the “teachers;” and the experiment was designed to determine if any of the “teachers” could disobey the “experimenter’s” order to “proceed with the experiment” once the “learners” began to scream in pain.

Milgram’s data showed that, if they couldn’t hear the screaming, 65% of the “teachers” would give their “learners” what they believed was a 450 volt shock using a switch labeled “DANGEROUS.” If they were able to hear their “learner” screaming, 62.5% of the “teachers” would administer the 450 volt shock. If they had physically touched their “learner,” 30% of the “teachers” would administer the 450 volt shock. Milgram’s results were replicated in studies around the world, with the highest “obedience” score being recorded in a study in Munich, where 85% of the “teachers” would shock up to the highest level. Based on this data, Milgram reached a number of intermediate conclusions of doubtful validity, and one final conclusion that in this writer’s opinion, is almost certainly wrong.

In this essay, I first debunk Milgram's final conclusion -- that humans are hardwired to obey even evil and immoral orders -- then explain why his intermediate conclusions are unwarranted, and finally, derive what I believe are valid conclusions to draw from the experiment.

Milgram’s final conclusion is founded on the pseudo-Darwinistic generalizations so common among the scientists writing in the post-Second World War period:

Let us begin our analysis by noting that men are not solitary but function within hierarchical structures. In birds, amphibians, and mammals we find dominance structures (Tinbergen, 1953; Marler, 1967), and in human beings, structures of authority mediated by symbols rather than direct contests of physical strength. The formation of hierarchically organized groupings lends enormous advantage to those so organized in coping with dangers of the physical environment, threats posed by competing species, and potential disruption from within.

Let us begin by observing that Milgram refers to humans as “men,” and that men are the most violent half of the human species. Let us then deconstruct the blithe assertion that “men … function within hierarchical structures,” a statement that ignores the fact that all the evidence shows that historically, from the Neolithic cave-painter tribes to the aboriginal tribes of today, “hierarchical” society has not been the norm. Just as it has been said that, statistically, most people have eaten reindeer as the principal component of their diet, so also, most humans have lived in non-hierarchical societies.

Let us next consider how scientific a statement can be that attempts to derive a conclusion from a one-sentence generalization about “birds, amphibians, and mammals.” Aside from being ridiculously overbroad, it makes no sense. Is Milgram really saying that lions, that hunt in groups, are evolutionarily advantaged over tigers and jaguars, that do not? Really? Then consider this statement by Milgram, a little farther down the page: “Behaviors that did not enhance the chances of survival were successively bred out of the organism because they led to the eventual extinction of the groups that displayed them.” Is that so? Then why are there any tigers and jaguars left at all, if their individualized hunting system is inferior to that of their competitors?

Let us conclude by straining the jargon and hyperbole from this sentence, “The formation of hierarchically organized groupings lends enormous advantage to those so organized in coping with dangers of the physical environment, threats posed by competing species, and potential disruption from within. This mass of verbiage can be condensed to the following compact statement: “Heirarchical societies repel internal and external threats more effectively than non-hierarchical ones.” Excuse me? Is that why Cortez, with forty-nine men on horseback, defeated the entire Aztec empire? Aztec society was perhaps the most hierarchical in human history. Aztec priests, armed with divine authority, sacrificed numberless humans in an orgy of socially-approved bloodletting aimed at ensuring the yearly return of the sun. Cortez may have commanded a disciplined cadre of armed men, but surely Moctezuma’s “enormous” hierarchical leverage and enormous armies should have carried the day. Similarly, if hierarchy and numerical advantage is an evolutionary trump-card, the Incas should have prevailed over Pizarro, the Teutonic barbarians could not have toppled the Roman Empire, and Sitting Bull could not have won at Little Big Horn. Milgram’s argument that hierarchical societies are the product of natural selection is little more than hogwash laced with Darwin-flavored Kool-Aid.

Unconcerned that his argument is a counterfeit of valid evolutionary thinking, Milgram spends freely, erecting monuments of nonsense that have been taken at face value by generations of readers. Take this statement, in which Milgram concretizes the “enormous” advantage of hierarchy by evoking the monuments of the Pharaohs and ancient Athens: “We look around at the civilizations men have built, and realize that only directed, concerted action could have raised the pyramids, formed the societies of Greece, and lifted man from a pitiable creature struggling for survival to technical mastery of the planet.” Again “men” do all the building, and the fact that both Egypt and Greece built their cyclopean structures with slave labor is conveniently forgotten. One may well also ask, aside from attracting tourists, what advantages do the Parthenon and the Sphinx bring to the inhabitants of modern day Greece and Egypt? Finally, Milgram, writing at the height of the Cold War, conveniently forgets that our “technical mastery of the planet” placed humanity a button-push away from planetary holocaust, while for millions of years, our ancestors had never faced that danger, despite being “pitiable creatures struggling for survival.”

Milgram pumps the close of his pro-hierarchy sermon with one last scientific fable. Observing how, after “a wolf pack brings down its prey … the dominant wolf enjoys first privileges, followed by the next dominant one,” Milgram argues that the pack is “stabilized” by hierarchy – as if there had ever been a canine revolution or a Bolshevik wolf! From this anthropomorphic claim, Milgram derives a Confucian aphorism: “Internal harmony is ensured when all members accept the status assigned to them.” Forget that Confucius was concerned that without social rules society would go to the dogs -- Milgram has the dogs teaching philosophy!

Today, when the biggest dogs on Wall Street have eaten the entire economy and then some, the unemployed can take comfort in Milgram’s reminder that they are contributing to the stability of society by accepting a low place in the feeding hierarchy. Indeed, our species as a whole enjoys, yes, you guessed it, an “enormous” advantage. Ever wondered why Goldman Sachs and Morgan Stanley preside over the nation’s economy, paying its top employees millions in bonuses? Look no further than Stanley Milgram for an explanation – we are born to this subjugation, and better off for it, “because organization has enormous survival value,” and therefore “was bred into the organism through the extended operation of evolutionary processes.”

Perhaps you think I am being uncharitable, but Milgram needs no charity. He said he wanted to provide us with knowledge, and we shouldn’t accept ignorance in its stead out of respect for his ghost. Presumably because he caught humanity in an unflattering pose, all of his generalizations have been swallowed relatively uncritically. Having revealed his argument that obedience is biological destiny to be utter nonsense, we can proceed to the next level of the critique.

Milgram deceived the subjects of his experiment, the “teachers,” in at least three ways. First, he told them that he was conducting an experiment that he was not, in fact, conducting. Second, he told them that the experiment was lawful. Third, while the experiment was in progress, he had his white-coated “experimenters” tell the “teachers” that if anything happened to the learners, the consequences would not fall upon the “teacher,” but rather on the experimenter.

The first lie is obvious to everyone, but the reader must be careful to keep it in mind, remembering that although the experiment that Milgram performed was not illegal, the experiment the “teachers” thought they were performing would have been illegal, if they had actually performed it. Obviously, the experiment would not have “worked” without this deception.

The second lie is clearly not obvious, since it apparently didn’t occur to any of the participants, that the whole experiment they thought they were conducting was illegal. We may presume that Milgram didn’t recruit any criminal lawyers into his experiment, because any prosecutor or criminal defense lawyer would know that an experiment that subjects people to dangerous electric shocks would be criminal despite the “scientific” trappings. They would also tell you that, even if “learners” consented to suffer some level of harmless shock, refusing to stop the shocking after they demanded it would be criminal. An astute criminal lawyer might even suspect that the whole setup was devised as a “sting” operation by some imaginative prosecutor seeking to convict people of assault by electroshock.

For example, if the same criminal laws were applied to the “teachers,” as are applied to accused pedophiles, drug dealers, and weapons traffickers, the teachers could have been convicted of torture. Everyone has heard stories about the pedophile who engages in an online exchange in which some apparently sick person offers to set them up in a hotel room for a tryst with a ten-year old. Money changes hands, and the pedophile walks into Room 33 at the Roadside Chalet with a heart full of yearning and a bag of compromising novelties, children’s books and Valium, only to be met by a group of heavily armed men with an arrest warrant. Thousands of people are in prison right now for trying to buy drugs from police agents who had no drugs to sell, because the mere expressed intention to buy the illicit substance and an act in furtherance of that intention, is a convictable offense. In the arms-trafficking context, in 2005, a New Jersey jury convicted British citizen Hemant Lakhani merely for being willing to aid terrorists, by being present when an informant “sold” a fake shoulder-fired missile to the FBI. Lakhani, in his seventies, was sentenced to 47 years in prison.

Similarly, who could doubt that an aggressive prosecutor looking to pull off a “torture sting” could set up a Milgram-style “experiment,” and charge those who agreed to participate? Many jurors would vote to convict defendants who were demonstrably willing to administer additional shocks to victims who appeared to be screaming in agony. It wouldn’t matter that the “learners” in the sting were actors, just as it made no difference that the shoulder-fired missile in the Lakhani case was a fake. The commission of an act that the actor believed would cause agony would suffice for conviction.

So Milgram lied when he told the “teachers” that the experiment as they believed it was being conducted -- was lawful. In a fraud prosecution, the law defines such a lie as a “material misrepresentation,” because the truth about this subject would be “material” to a person making the decision whether to participate in the experiment. Nobody would have agreed to participate if they had been required to sign a waiver form that said, “I understand that the legality of this experiment is doubtful, and I could be prosecuted for assault or more serious crimes if the learners are injured by teaching shocks that I administer.” Let us imagine, for sake of analysis, that one of the “teachers,” unable to deal with the stress of being “forced” to continue shocking the “learners,” had fallen over dead of a heart attack. His heirs would have been legally justified in suing Milgram and his accomplices for fraudulently inducing him to participate in a risky activity that in fact caused death.

The third lie Milgram told was that “teachers” would bear no responsibility for their actions. This lie was delivered by the “experimenter,” the man in the lab coat, when “teachers” questioned whether it was really proper to continue shocking people who were screaming in pain already. The experimenter would say, “it’s my responsibility” or similar words that removed the burden of continuing the “experiment” from the teacher’s shoulders.

Milgram’s experiment thus does not prove what he claims – that people in a “legitimate” environment will torture other people because they are biologically programmed to obey authority. It proves that if people are conned by scientists into thinking that their acts are part of a genuine scientific study (that has of course been vetted for safety and legality), then they will do what, under other circumstances, they would not do – torture their neighbors with electroshock. It proves that scientists can develop a convincing con that can overwhelm people’s basic good sense by brandishing their credentials and supplanting lawful authority with a twisted simulation of a scientific setting.

Milgram asserts that people were unable to break the spell of “obedience” because they were in an “agentic state,” in which they have no independent will, and their body is merely a connecting rod between the will of their director and the task that must be performed. Milgram states that the stress of torturing people threatens to break them out of the agentic state, but certain “binding factors” prevent them from acting. There are essentially two “binding factors”: first, the subject’s fear that if he stops shocking the “learner,” it will confirm the wrongness of what he has done up until that point, and second, the subject’s fear that if he refuses to continue, he will break a commitment to the experimenter and insult his authority. The “agentic state,” Milgram asserts, taps into each person’s inner subordinate, a pure suckup, who does not look outward to see the world, but rather, looks up and sees his superior, who for him, becomes the world.

Milgram’s image of humans genetically programmed to serve as agents of superior authority, is fortunately unsupported by the evidence. Milgram has drawn false conclusions by refusing to acknowledge that he induced people to participate in the experiment by telling them it was lawful. He refuses to acknowledge that since the participation of his subjects in the “learning experiment” was procured by fraud, it was not voluntary. He further refuses to see that more than “binding factors” are preventing his subjects from abandoning the experiment. In addition to the “binding factors,” and obviously more importantly, they are prevented from renouncing that agreement by keeping them physically confined in the phony laboratory, and psychologically confined in a state of ignorance. If the truth that the learning experiment was unlawful had been revealed at the outset, he would have had no participants. And if it had been revealed when the screaming started, they would all have quit. So deception by creating a false appearance of lawful authority, not obedience to lawful authority, was the cause of the experimental results.

Milgram’s duplicity is equally in evidence when he cons his readers with his unwarranted conclusions. Deploying the jargon of natural selection, and tossing about a few platitudes about the glory that was Greece, he makes a quick and dirty argument that invokes Darwinism to support the silly claim that “obedience” is bred into humanity by millions of years of evolution. In truth, the social organizations of animals have been the subject of thousands of studies by natural scientists, and the term “obedience” does not feature prominently in their analyses. Milgram simply asserts his prejudice and claims that science supports it, but this is no more scientific than torturing people to teach them how to memorize word lists would have been. He is huckstering his readers with faux science just as he deceived his experimental subjects. His essay is supported with charts and graphs. He summarizes his findings in percentages by category. This must be science – it looks like it! On the contrary, it looks like science, but it is not.

What we can learn from Milgram is that people who lack an understanding of law and science can be manipulated by unscrupulous people. This is called criminality. It is not lawful authority. Whenever people are induced to commit acts that transgress the limits of law as they know it, whether it be the law of how to treat your neighbors, your children, or prisoners of war, the people who lead them into this moral transgression are criminals, and the people who commit the wrongful acts become criminals by participating. Milgram puzzles over what his subjects had to do in order to reach the level of refusing to participate in the experiment, but his analysis hits a dead-end when he decides to blame “evolution” for the tendency of people to give in to authority.

Evolution is not to blame, and our human biology does not doom us to slavish compliance with whatever top dog sits above us in the hierarchy. It is the abuse of authority by people who will create false, theatrical dramas to compel the obedience of other humans that can order soldiers to commit acts of war, torture, and mass killing. There is more than a passing similarity between how Milgram enlisted participants in his experiment, and how a nation of peaceful citizens is whipped up into a war fever. In both cases, lies are essential, and repeated assurances from the authorities that the whole enterprise is lawful and necessary. And the same missing factor – honest information about the experiment, or the war – would bring both to a grinding halt.

So we can learn from Milgram, so long as we don’t accept his conclusions. What we can learn is that whenever so-called authorities demand that we perform acts that we know, based on our deeply-ingrained social norms, are wrong, these authorities are acting outside of their lawful scope. Regardless of whether they are wearing lab coats, banker’s suits, police badges, military uniforms, or religious robes, if they direct us to violate moral or social law, they are not real authorities, they are deceivers, con-artists, attempting to exploit our ignorance. Whenever someone tries to overwhelm us with urgent demands, claiming that we must act contrary to past precedent because the old rules don’t apply in this “new” situation, we need to ask questions, demand answers, and declare our right to act according to our own inner moral guidance.

In every situation that presents a serious moral question for our decision, we must insist on our individual right to make that decision personally, based on our own convictions. We must reject Milgram's version of original sin, that we might call original servitude, and with it the notion that it is either right or inevitable that we should bow to the dictates of self-appointed authorities. As members of a democratic society, who bear the duty of self-governance, we must remember that we are individuals, born free, and can remain so only by asserting that we will live and act by the light of our own understanding. And authority be damned.

Has anyone tried to get health insurance lately? I haven’t had it since I stopped working for Jackson County, Oregon in 1994. It’s simply prohibitive. For many years, I couldn’t get the non-smoker rates, because I still smoked my daily cancer stick, but I’ve cut that out now. My wife started worrying about not having it, so I said, “enroll at Pima Community College and get the insurance the college kids get.” She did, and what a sad, sad joke that was. The doctors in town looked askance at the company, whose reputation in Tucson is apparently not good, and when the bills came in, they paid a paltry fraction. For this we were out well over a grand per semester, i.e., four-month period. Given our health care needs, it made more sense to keep it in the bank, pay for doctor visits out of cash, and if catastrophe hits, just plan on declaring bankruptcy.

Who Needs Insurance?

I’ve worked for adult entertainment industry clients for the last nine years. Without making too many assumptions, I think it is a safe bet that people in this industry rarely obtain health insurance for themselves or their employees. Content producers often fail to require even basic health precautions in shooting scenes where models are exposed to body fluids, and workplace regulations in this field are nonexistent, resulting in an epidemic of chlamidia and other STDs in the LA industry, which caused the AIDS Foundation of LA to file suit against the LA County Health Dept. Lest you think that’s unique to a dirty business, think again. There’s nothing unusual about this situation in the USA, where people are frequently exposed to hazardous substances while working at jobs that provide no health insurance.

Why Are Americans So Sick And Why Is It So Costly To Heal Them?

Excuse me, but the elephant in the room passing nasty gas is called Fast Food and the Sedentary Lifestyle. The major killers are heart disease, hypertension, obesity, diabetes. Christ, I talked to a young man at Fedex Kinkos who has gout! You used to have to be rich to get gout. Now any schmo can afford it. Fast Food is the Modern Bread Line — you can always supposedly buy a burger for under a dollar. But Obama should re-enact that scene in Moon Over Parador where Richard Dreyfuss, playing the role of replacement-for-a-dictator of a banana republic who goes on TV to encourage his citizens to eat healthy, “Our Paradorean food — it’s tasty — but it’ll kill you!” But if he tried, Arby would rope him, Wendy would shock him with a cattleprod, and Ronald McDonald would follow the late Ray Kroc’s adage and “stick a hose in his mouth.”

Fact is, everything about health care is backassward in this country, due to the dominance of greedy geezers who have a chokehold on the ballot box and anti-scientific agendas that legislate morality. It’s easier for an old drunk age sixty-six to get on kidney dialysis after rotting his liver with Thunderbird wine than it is for an eighth-grader with a working mom to get cavities filled. Needle-exchanges are deemed immoral, even though they close down the major vector of transmitting contagion, while the same interest group clamors to close the borders to protect against swine flu. Swine flu, for that matter, can’t be called swine flu, because the pig farmers have fed Congress so much slop they think it’s yummy. We are tied with Poland and Slovakia with the 29rd highest infant mortality rate in the world (big improvement though since 1960, when it was 12th, but the AIDS epidemic in Africa has skewed the numbers). It’s easier to get your face shot full of Botulin than it is to get treatment for skin cancer. And let’s not forget, if you’re a pop star, you can get a daisy chain of crooked MD’s to bleach your skin, carve your nose down to a stump, and issue scrips for all the sedatives you need to cope with the pain of celebrity and ultimately sedate yourself to death. At that point, the end of you will be the beginning of a windfall for the record companies, and lawyers for your estate will protect your legacy by stemming the flood of counterfeit merchandise, because after all, people come and go, but trademarks are eternal.

I’m sorry if I sound like Keith Olbermann, but this subject makes me feel like Schwarzennegger in T2 — I’ve got a Gatling gun, an endless belt of ammunition, and an infinite supply of targets. So I’ll stop now, before I get accused of indulging in an orgy of verbal violence.

Is It Competitive In The International Economy to Require People to Buy Their Own Insurance?

US businesses are at a competitive disadvantage with foreign companies in nations where health care is provided by the government. Case in point — health care costs for retirees are one of the primary causes of the GM bankruptcy. And take note, that in bankruptcy, the funds those retirees thought would be protected for their health care are going to be dwindling as financiers with lawyers sort through the wreckage. And it’s not rocket science or Nobel-prize economics to know that if you can’t afford health insurance for your employees, you’re not going to attract the “best and the brightest,” indeed, like me, you might not hire anybody at all, and just contract everything out.

Would Insuring People Protect A National Resource?

I have previously pondered why it is acceptable to insure banks as a matter of public policy, but not to insure the health of people. The issue is always put in the negative — it’s “too expensive to have people going to the ER for primary care,” and “health care costs are out of control,” etc. How about this for a novel thought? — People are our greatest resource, and they will be more productive and benefit society more abundantly if the have health care, food, and education. People think they only want to pay for their own kids to get health care, but consider the fact that some random kid who can’t get dental care or a college education might, if given a chance, go to school and discover the biotech solution to the cancer that you or your loved one may someday get. Or they might just reform the fast food industry and save us from our addictive appetites. Or negotiate peace in the Middle East, or … you get the idea. Incidentally, they will be less inclined to crime and spreading contagion by shooting IV drugs and letting their heads be used as semen receptacle to earn the price of a hit. But no, people are considered a burden, a mass of demands that need to have bread lines and entitlements to continue their lives as non-productive, uneducated “consumers,” and only corporations create value, so only corporations can suck the tit of Big Government.

The Third Circuit Court of Appeals upheld New Jersey District Court Judge Mary Cooper’s decision of all legal issues against IMEGA, a gambling trade association that had argued that the Unlawful Internet Gambling Enforcement Act of 2006, 31 U.S.C. § 5361 et seq. was unconstitutional.

The law makes it illegal for companies “engage in the business of betting or wagering” to accept checks, credit cards, or other forms of payment “to place, receive, or otherwise knowingly transmit a bet or wager by any means which involves the use, at least in part, of the Internet where such bet or wager is unlawful under any applicable Federal or State law in the State or Tribal lands in which the bet or wager is initiated, received, or otherwise made.” IMEGA, referred to in the opinion as “Interactive,” argued (1) that the Act was void for vagueness, (2) that it violated the right to privacy by preventing gambling in the privacy of the home, and (3) that it violated the First Amendment right to free speech.

The Third Circuit found all three arguments had no merit. The court decided: (1) The Act was sufficiently clear for any person “of ordinary intelligence” to understand it; (2) gambling is not protected from governmental impingement in the same way as is the right to have sex in the home; and, (3) the Act did not impinge on speech in any way.

We reject Interactive’s vagueness claim. The Act prohibits a gambling business from knowingly accepting certain financial instruments from an individual who places a bet over the Internet if such gambling is illegal at the location in which the business is located or from which the individual initiates the bet. 31 U.S.C. 5362(10)(A), 5363. Thus, the Act clearly provides a person of ordinary intelligence with adequate notice of the conduct that it prohibits.

It bears repeating that the Act itself does not make any gambling activity illegal. Whether the transaction in Interactives hypothetical constitutes unlawful Internet gambling turns on how the law of the state from which the bettor initiates the bet would treat that bet, i.e., if it is illegal under that states law, it constitutes unlawful Internet gambling under the Act.

In sum, we must reject Interactives facial challenge to the Act. Simply put, a gambling business cannot knowingly accept the enumerated financial instruments in connection with a bet that is illegal under any Federal or State law applicable in the jurisdiction in which the bet is initiated or received. Thus, the Act provide[s] a person of ordinary intelligence fair notice of what is prohibited. Williams, 128 S. Ct. at 1845.4A

Next, Interactive contends that the District Court erred in rejecting its claim that the Act violated a constitutional right of individuals to engage in gambling-related activity in the privacy of their homes. As noted above, the District Court held that Interactive lacked standing to assert the rights of third-party gamblers, and alternatively, that the claim failed on the merits.

We share the District Courts doubts regarding Interactives standing to assert these claims, particularly because Interactive does not itself have any relationship with individual gamblers, but rather seeks to assert third-party standing based on its members relationships with such gamblers. However, … we need not decide whether Interactive has standing because, even assuming that it does, we agree with the District Court that Interactives claim clearly fails on the merits.

Interactives reliance on those cases is misplaced. Both Lawrence and Earle involved state laws that barred certain forms of sexual conduct between consenting adults in the privacy of the home. Lawrence, 539 U.S. at 567; Earle, 517 F.3d at 744. As the Supreme Court explained in Lawrence, such laws touch[] upon the most private human conduct, sexual behavior, and in the most private of places, the home. 539 U.S. at 567. Gambling, even in the home, simply does not involve any individual interests of the same constitutional magnitude. Accordingly, such conduct is not protected by any right to privacy under the constitution.

Before the District Court, 8 Interactive primarily pursued a claim that the Act violated the First Amendment. Although Interactive stated at oral argument that it had not abandoned that claim, it only tangentially mentions this argument in its papers to this court. In any event, the Act only criminalizes the knowing acceptance of certain financial instruments in connection with unlawful gambling. Simply put, such conduct lacks any communicative element sufficient to bring it within the ambit of the First Amendment. United States v. OBrien, 391 U.S. 367, 376 (1968).

No Title of Nobility shall be granted by the United States: And no Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.

In a memorandum finding that NASA employees could not take paid leave to work for a Canadian University that was chartered under Canadian law, the United States Department of Justice has defined “King, Prince or foreign State” to include foreign universities:

Foreign public universities are, presumptively, foreign States within the meaning of the Clause.

The language of the Emoluments Clause is both sweeping and unqualified. The Clause in terms prohibits those holding offices of profit or trust under the United States from accepting “any present, Emolument, Office, or Title, of any kind whatever” from “any . . . foreign State” unless Congress consents (emphases added). There is no express or implied exception for emoluments received from foreign States when the latter act in some capacity other than the performance of their political, military or diplomatic functions. The decision whether to permit exceptions that qualify the Clause’s absolute prohibition or that temper any harshness it may cause is textually committed to Congress, which may give consent to the acceptance of offices or emoluments otherwise barred by the Clause.

*** Those who hold offices under the United States must give the government their unclouded judgment and their uncompromised loyalty. That judgment might be biased, and that loyalty divided, if they received financial benefits from a foreign government, even when those benefits took the form of remuneration for academic work or research. Moreover, institutions of higher learning are often substantially funded, whether directly or indirectly, by their governments, and university research programs or other academic activities may be linked to the missions of their governmental sponsors, including national scientific and defense agencies.

Accordingly, we conclude that foreign governmental entities, including public universities, are presumptively instrumentalities of foreign States under the Emoluments Clause, even if they do not engage specifically in political, military or diplomatic functions.

There can be no doubt that the Nobel Prize Committee is an institution of the Norwegian government. The Nobel website states:

Since the first Nobel Prizes were awarded in 1901, the Peace Prize has, in accordance with Alfred Nobel’s will, been awarded by a committee of five, appointed by the Storting (the Norwegian Parliamant), but without the committee being formally responsible to the Storting. According to rules laid down by the Storting, election to the committee was to be for a six-year term, and members could be re-elected. The committee’s composition should reflect the relative strengths of the political parties in the Storting, but the committee has elected its own chairman and deputy chairman. It was never required by the rules and on some occasions the matter has been debated, but so far all committee members have been Norwegian nationals.

Given that the avowed purpose of the award is to empower the President to exercise his influence in support of the Nobel commission’s mission to allegedly foment world peace, and comes with a very substantial “emolument,” $1.4 Million USD, it should be no-brainer that this comes up in front of Congress. Mr. Reid, Madam Pelosi, front and center! Let’s get this done before we vote on health care, okay?

This issue has already been raised by an anonymous poster, so I cannot claim to be an original thinker. However, the question is rather obvious, and I am uncertain why Attorney General Eric Holder has failed to consider it. Except, perhaps, that reading the Constitution isn’t a big priority inside the Beltway.

P.S. What I didn't cover here was this, far more trenchant question -- since when is the Commander in Chief of the world's largest rogue police force, a man who has failed to make good on promises to end torture and adventurism, who props up a puppet dictator in Afghanistan, and presides over a drone force that kills people like targets in a video game, a "Peace Prize" Winner?

APPLICABILITY OF EMOLUMENTS CLAUSE TO EMPLOYMENT OF GOVERNMENT EMPLOYEES BY FOREIGN PUBLIC UNIVERSITIES

The Emoluments Clause does not apply in the cases of government employees offered faculty employment by a foreign public university where it can be shown that the university acts independently of the foreign State when making faculty employment decisions.

This memorandum responds to your request of September 9, 1993, for our opinion concerning the applicability of the Emoluments Clause, U.S. Const. art. I, § 9, cl. 8, to the employment by the University of Victoria in British Columbia, Canada, of two scientists on leave without pay from the Goddard Space Flight Center (Goddard), a component of the National Aeronautics and Space Administration (NASA). (1) We conclude that the Emoluments Clause does not apply in these cases.

I.

As Goddard has explained, Drs. Inez Fung and James K. B. Bishop have sought your administrative approval for employment as Professors in the School of Earth and Ocean Sciences at the University of Victoria until August 31, 1994. During that period, the two scientists would be in Leave Without Pay status from their positions at the Goddard Institute for Space Studies, a component of Goddard. (Goddard is itself a NASA field installation.) Both scientists hold the position of Aerospace Technology (AST)/Global Ecology Studies at the GS-15 level. For their services in teaching and research while on leave, Drs. Fung and Bishop would be paid $85,000 and $70,000 respectively by the University of Victoria.

The University of Victoria operates under the University Act, a statute enacted by the legislature of British Columbia. See University Act, R.S.B.C. 1979, ch. 419, as amended; Goddard Mem., Attachment 7. The Act provides that the university is to consist of a chancellor, convocation, board, senate and faculties. Id., Pt. 3, § 3(2). The chancellor is to be elected by the members of the convocation, id., Pt. 5, § 11(1), and is to serve on the board of governors, id., Pt. 6, § 19(a). The convocation is composed of the chancellor, the president, the members of the senate, all faculty members, all graduates, all persons added to the roll of the convocation by the senate, and all other persons carried on the roll before July 4, 1974. Id., Pt. 4, § 5.

The Supreme Court of Canada has outlined the powers of the boards of governors and senates subject to the University Act:

Under the University Act, R.S.B.C. 1979, c. 419, the management, administration and control of the property, revenue, business and affairs of the university are vested in a board of governors consisting of 15 members. Eight of the members are appointed by the Lieutenant Governor in Council, but two of these must be nominated by the alumni association. The provincial government, therefore, has the power to appoint a majority of the members of the board of governors, but it does not have the power to select a majority. The academic government of the university is vested in the senate, only a minority of the members of which are appointed by the Lieutenant Governor.

Harrison v. University of British Columbia, [1990] 3 S.C.R. 451, 459 (judgment of Dickson, C.J., and La Forest and Gonthier, JJ.) (plurality op.). Further, "under s. 22(1) of the Act, the Lieutenant Governor 'may, at any time, remove from office an appointed member of the board.'" Id. at 467 (Wilson, J., dissenting).

In general, the "management, administration and control of the property, revenue, business and affairs of the university are vested in the board." University Act, Pt. 6, § 27. In addition, the university "enjoys special government-like powers in a number of respects and the exercise of these would presumably fall under the jurisdiction of the board. It has the power to expropriate property under s. 48 and its property is protected against expropriation under s. 50. It is exempt from taxation under s. 51. The board may also borrow money to meet University expenditures (s. 30) and appoint advisory boards for purposes it considers advisable (s. 33). The University may not dispose of its property without the approval of the Lieutenant Governor (s. 47(2))." Harrison, [1990] 3 S.C.R. at 467 (Wilson, J., dissenting).

As pointed out above, the academic governance of the university is vested in the senate. University Act, Pt. 7, § 36. The senate is composed of a number of persons, including the Chancellor, the President, deans, administrators, faculty, students, 4 members of convocation, representatives of affiliated colleges, and 4 persons appointed by the Lieutenant Governor. Id., § 34. Thus, only a relatively small minority of the senate will consist of governmental appointees. (2)

Finally, the faculty is "constituted by the board, on the recommendation of the senate." University Act, Pt. 8, § 38. The faculty has various powers, including the power to determine, subject to the approval of the senate, courses of instruction. Id., § 39(d).

II.

The Emoluments Clause, U.S. Const. art. I, § 9, cl. 8, provides:

No Title of Nobility shall be granted by the United States: And no Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.

Goddard advances two basic arguments for concluding that the Emoluments Clause is inapplicable in these cases. First, it maintains that the University of Victoria is not a "foreign State" within the meaning of the Clause. Second, it suggests that when a Federal employee is on Leave of Absence Without Pay status, he or she does not occupy an "Office of Profit or Trust" under the United States. For reasons somewhat different from Goddard's, we agree that the Clause is inapplicable here. Although we believe that foreign public universities, such as the University of Victoria, are presumptively foreign States under the Emoluments Clause, we also find that, in this case, the university can be shown to be acting independently of the foreign State with respect to its faculty employment decisions. Because such a showing can be made, we conclude that in that context the University of Victoria should not be considered a foreign State.

A.

The Emoluments Clause was adopted unanimously at the Constitutional Convention, and was intended to protect foreign minister (3) James Madison's notes on the Convention for August 23, 1787 report:

Mr[.] Pinkney urged the necessity of preserving foreign Ministers & other officers of the U.S. independent of external influence and moved to insert -- after Art[.] VII sect[.] 7. the clause following -- "No person holding any office of profit or trust under the U.S. shall without the consent of the Legislature, accept of any present, emolument, office or title of any kind whatever, from any King, Prince or foreign State["] which passed nem: contrad.

2 M. Farrand (ed.), The Records of the Federal Convention of 1787 389 (1966); see also 3 id. at 327 (remarks of Governor Randolph). (4) "Consistent with its expansive language and underlying purpose, the provision has been interpreted as being 'particularly directed against every kind of influence by foreign governments upon officers of the United States, based upon our historic policies as a nation.' 24 Op. Att'y Gen. 116, 117 (1902) (emphasis in original)." Applicability of Emoluments Clause to Proposed Service of Government Employee on Commission of International Historians, 11 Op. O.L.C. 89, 90 (1987).

Our Office has been asked from time to time whether foreign entities that are public institutions but not diplomatic, military or political arms of their government should be considered to be "foreign State[s]" for purposes of the Emoluments Clause. In particular, we have been asked whether foreign public universities constitute "foreign State[s]" under the Clause. Our prior opinions on this subject have not been a seamless web. Thus, in an opinion that Goddard cites and relies upon, we concluded that while the University of New South Wales was clearly a public institution, it was not so clear that it was a "foreign State" under the Emoluments Clause, given its functional and operational independence from the federal and state governments in Australia. (5) Accordingly, we opined that the question posed there -- whether a NASA employee could accept a fee of $150 for reviewing a Ph.D. thesis -- had to be answered by considering the particular circumstances of the case, in order to determine whether the proposed arrangement had the potential for corruption or improper foreign influence of the kind that the Emoluments Clause was designed to address. On other occasions, however, we have construed the Emoluments Clause to apply to public institutions of higher education in foreign countries without engaging in such an inquiry. (6)

In re-examining these precedents, we have considered the claim that foreign universities, even if "public" in character, should generally not be considered to be instrumentalities of foreign States for purposes of the Emoluments Clause. On behalf of this view, it can be argued that the Clause was designed to guard against the exercise of improper influence on United States officers or employees by the political, military or diplomatic agencies of foreign States, because payments by those agencies are most likely to create a conflict between the recipient's Federal employment and his or her outside activity. Because public universities do not generally perform such functions, they ought not, on this analysis, to be brought within the Clause. (7)

After considering the question carefully, we have concluded that such an interpretation of the Emoluments Clause is mistaken. Foreign public universities are, presumptively, foreign States within the meaning of the Clause. (8)

The language of the Emoluments Clause is both sweeping and unqualified. (9) The Clause in terms prohibits those holding offices of profit or trust under the United States from accepting "any present, Emolument, Office, or Title, of any kind whatever" from "any . . . foreign State" unless Congress consents (emphases added). There is no express or implied exception for emoluments received from foreign States when the latter act in some capacity other than the performance of their political, military or diplomatic functions. The decision whether to permit exceptions that qualify the Clause's absolute prohibition or that temper any harshness it may cause is textually committed to Congress, which may give consent to the acceptance of offices or emoluments otherwise barred by the Clause. (10)

Further, it serves the policy behind the Emoluments Clause to construe it to apply to foreign States even when they act through instrumentalities such as universities which do not perform political, military or diplomatic functions. Those who hold offices under the United States must give the government their unclouded judgment and their uncompromised loyalty. (11) That judgment might be biased, and that loyalty divided, if they received financial benefits from a foreign government, even when those benefits took the form of remuneration for academic work or research. (12) Moreover, institutions of higher learning are often substantially funded, whether directly or indirectly, by their governments, and university research programs or other academic activities may be linked to the missions of their governmental sponsors, including national scientific and defense agencies. (13) Thus, United States Government officers or employees might well find themselves exposed to conflicting claims on their interests and loyalties if they were permitted to accept employment at foreign public universities. (14)

Finally, Congress has exercised its power under the Emoluments Clause to create a limited exception for academic research at foreign public institutions of learning. The Foreign Gifts and Decorations Act provides in part that Federal employees may accept from foreign governmental sources "a gift of more than minimal value when such gift is in the nature of an educational scholarship." 5 U.S.C. § 7342(c)(1)(B). (15) Thus, Congress has recognized that foreign governmental bodies may wish to reward or encourage scholarly or scientific work by employees of our Government, but has carefully delimited the circumstances in which Federal employees may accept such honors or emoluments. That suggests that Congress believes both that the Emoluments Clause extends to paid academic work by Federal employees at foreign public universities, and that the Clause's prohibition on such activity should generally remain in force.

Accordingly, we conclude that foreign governmental entities, including public universities, are presumptively instrumentalities of foreign States under the Emoluments Clause, even if they do not engage specifically in political, military or diplomatic functions. (16)

B.

Having found that foreign public universities may and presumptively do fall under the Emoluments Clause, we turn next to the question whether the University of Victoria in particular is an instrumentality of a foreign State (the province of British Columbia), and hence within the Clause. We conclude that it is not, at least with respect to the faculty employment decisionmaking that is in issue here.

Goddard contends that "[t]he ability of [Canadian] federal or provincial government officials to influence and control the actions of [the University of Victoria's board, senate and faculty] is most possible concerning the Board, but in all three cases is minimized by the other members of the organizations, the sources from which those members are obtained, the method of their nominations and appointments, and the procedures concerning replacement . . . Thus, it appears [that] the University of Victoria is established as a largely self-governing institution, with minimal influence exercisable over the daily affairs and even general policies of the University." Goddard Mem. at 6.

Without attempting to decide whether, as Goddard claims, the University of Victoria is generally free from the control of the provincial government of British Columbia, we think that the evidence shows that the university is independent of that government when making faculty employment decisions. We rely here chiefly on the Supreme Court of Canada's decisions in the Harrison case, cited above, and in the companion case, McKinney v. University of Guelph, [1990] 3 S.C.R. 229.

The principal question presented in Harrison was whether the University of British Columbia's mandatory retirement policy respecting its faculty and administrative staff was consistent with the requirements of the Canadian Charter of Rights and Freedoms (the Charter). (17) Whether the Charter applied turned on whether the challenged policy constituted governmental action -- an inquiry raising issues at least somewhat akin to those posed by the "State action" doctrine in United States jurisprudence. See Harrison, [1990] 3 S.C.R. at 463 (plurality op.). (18) Over dissent, the Court held that the university's policy was not governmental action under the Charter. In reaching that conclusion, three of the seven judges drew a distinction between "ultimate or extraordinary control and routine or regular control," and held that while the government of British Columbia may be able to exercise the former, it lacked "the quality of control that would justify the application of the Charter." Id.; see also id. at 478 (L'Heureux-Dubé, J., dissenting on the appeal only) (university not "government" for purpose of section 32 of Charter).

Similarly, in McKinney, a majority of the Court, again over dissent, held that the mandatory retirement policies of the defendant universities (there, located in the Province of Ontario) did not implicate the Charter. Moreover, the lead opinion emphasized the autonomy of the provincial universities when making faculty employment decisions:

The Charter apart, there is no question of the power of the universities to negotiate contracts and collective agreements with their employees and to include within them provisions for mandatory retirement. These actions are not taken under statutory compulsion, so a Charter attack cannot be sustained on that ground. There is nothing to indicate that in entering into these arrangements, the universities were in any way following the dictates of the government. They were acting purely on their own initiative . . . The legal autonomy of the universities is fully buttressed by their traditional position in society. Any attempt by government to influence university decisions, especially decisions regarding appointment, tenure and dismissal of academic staff, would be strenuously resisted by the universities on the basis that this could lead to breaches of academic freedom. In a word, these are not government decisions.

McKinney, [1990] 3 S.C.R. at 269, 273 (plurality op.); see also id. at 418-19 (L'Heureux-Dubé, J., dissenting) (while universities may perform certain public functions attracting Charter review, hiring and firing of employees at universities in both British Columbia and Ontario are not among such actions; "Canadian universities have always fiercely defended their independence.").

While the Ontario statute at issue in McKinney differed from the British Columbia statute considered in Harrison (in particular, Ontario's statutes, unlike British Columbia's, did not permit the provincial government to appoint a majority of a university board's membership), the Harrison plurality held that these differences did not establish that the core functions of the British Columbian universities were under the province's control. Harrison, [1990] 3 S.C.R. at 463-64 (plurality op.) Thus, the Court's statements in McKinney concerning the autonomy of Ontario's universities in matters of faculty employment would apparently hold true for the universities in British Columbia as well. (19) Furthermore, even the dissent in Harrison acknowledged "the lack of government control over the mandatory retirement policies specifically in issue here and over matters specifically directed to the principle of academic freedom." Id. at 472 (Wilson, J., dissenting). (20) The remaining member of the Court accepted the trial court's finding that the university's employment agreements were essentially private contracts. Id. at 479-80 (L'Heureux-Dubé, J., dissenting on appeal only).

These Canadian cases cannot of course determine our interpretation of the Emoluments Clause. But they do provide compelling evidence that the University of Victoria is independent of the government of British Columbia with respect to decisions regarding the terms and conditions of faculty employment. Because that showing can be made, we believe the university should not be considered to be a foreign State under the Emoluments Clause when it is acting in that context. (21)

Conclusion

The Emoluments Clause does not prohibit the two NASA scientists from accepting paid teaching positions at the University of Victoria during their unpaid leave of absence from their agency.

2 "With respect to some important matters, however, the decisions of the senate are effectively controlled by the board of governors." Harrison, [1990] 3 S.C.R. at 469 (Wilson, J., dissenting). For example, "every resolution passed by the senate respecting the establishment or discontinuance of any faculty, department, course of instruction, chair fellowship, scholarship, exhibition, bursary or prize (s. 36(i)) as well as internal faculty matters and terms of affiliation with other universities is of no force or effect unless approved by the board (s. 37)." Id.

3 See, e.g., The Federalist No. 22, at 149 (Alexander Hamilton) (Clinton Rossiter ed., 1961) ("One of the weak sides of republics, among their numerous advantages, is that they afford too easy an inlet to foreign corruption.").

4 The Emoluments Clause builds upon practices that had developed during the period of the Confederation. "It was the practice of Louis XVI of France to give presents to departing ministers who signed treaties with France. Before he left France in mid-1780, Arthur Lee received a portrait of Louis set in diamonds atop a gold snuff box. In October 1780 Lee turned the gift over to Congress, and on 1 December Congress resolved that he could keep the gift. In September 1785 Benjamin Franklin informed Secretary for Foreign Affairs John Jay that, when he left France, Louis XVI presented him with a miniature portrait of himself, set with 408 diamonds. In October Jay recommended to Congress that Franklin be permitted to keep the miniature in accordance with its December 1780 ruling about a similar miniature given to Lee. In March 1786 Congress ordered that Franklin be permitted to keep the gift. At the same time, Congress also allowed Jay himself to accept the gift of a horse from the King of Spain even though Jay was then engaged in negotiations with Spain's representative, Don Diego de Gardoqui." 10 John P. Kaminski et al. (eds.), The Documentary History of the Ratification of the Constitution 1369 n.7 (1993). See also President Reagan's Ability to Receive Retirement Benefits from the State of California, 5 Op. O.L.C. 187, 188 (1981) (discussing background to ratification of Clause).

6 See, e.g., Memorandum to File from Robert J. Delahunty, Acting Special Counsel, re: Applicability of Emoluments Clause to Employment of CFTC Attorney by East China Institute of Politics and Law (Aug. 27, 1992); Memorandum to Files from Barbara E. Armacost, re: Emoluments Clause and Appointment to the President's Committee on the Arts and Humanities (Nov. 15, 1990). The General Accounting Office has reached a similar result in a related context. See 44 Comp. Gen. 130 (1964) (retired Coast Guard officer subject to recall to active duty held not entitled to retirement pay for period in which he was teaching for Department of Education of State of Tasmania, Australia).

7 See Gerald S. Schatz, Federal Advisory Committees, Foreign Conflicts of Interest, The Constitution, and Dr. Franklin's Snuff Box, 2 Dist. Colum. L. Rev. 141, 163, 166 (1993) ("The Emoluments Clause's reference to foreign states was a reference to foreign governments' acts in their sovereign capacity, as distinguished from the acts . . . of foreign governmental entities without the legal capacity to represent the national sovereign . . . . The Clause addresses the problem of conflict of interest on the part of a U.S. Government functionary vis-à-vis a foreign sovereign in a sovereign capacity. The Clause thus may not be assumed to disqualify from U.S. Government service . . . an academic paid by a foreign government with which the officer does not deal").

8 See also Memorandum to Gary J. Edles, General Counsel, Administrative Conference of the United States, from Walter Dellinger, Assistant Attorney General, Office of Legal Counsel, re: Applicability of Emoluments Clause To Non-Government Members of ACUS, at 10-12 (October 28, 1993) (opining that Emoluments Clause applies to foreign public universities).

10 Accordingly, Congress has acted in appropriate cases to relieve certain classes of government personnel, e.g., retired military officers, from applications of the Clause. See Ward v. United States, 1 Cl. Ct. 46 (1982).

12 Consistently with this view, we have opined that an employee of the National Archives could not serve on an international commission of historians created and funded by the Austrian Government to review the wartime record of Dr. Kurt Waldheim, the President of Austria. See Applicability of Emoluments Clause to Proposed Service of Government Employee on Commission of International Historians, supra.

13 Goddard's own link with Columbia University in New York City, see Goddard Mem. at 3, 7, is illustrative.

14 Of course, the same predicament could arise if Government employees worked at private universities abroad (or even in the United States). But the fact that the Emoluments Clause does not address every situation in which Government employees might be subjected to improper influence from foreign States is no reason to refuse to apply it to the cases which it does reach.

15 We have opined that this exception applied to an award of approximately $24,000 by a foundation acting on behalf of the West German Government to a scientist employed by the Naval Research Laboratory. We reasoned that a "program designed to honor United States scientists and enable them 'to stay for an extended period at research institutes in the Federal Republic of Germany to carry out research of the Awardee's own choice' seems to be in the nature of an educational scholarship, acceptance of which Congress has permitted." Letter to Walter T. Skallerup, Jr., General Counsel, Department of the Navy, from Robert B. Shanks, Deputy Assistant Attorney General, Office of Legal Counsel, at 4 (March 17, 1983).

16 We would also reject any argument that foreign public universities should be excluded from the purview of the Emoluments Clause on the theory that the Clause must be taken to prohibit only the acceptance of office or emoluments bestowed by a foreign State while engaged in performing "traditional" governmental functions, i.e., functions that governments would normally have performed at the time of the framing. The theory assumes that governmental support for higher education would not have been among such functions. The argument has several flaws. First, there is no such exception provided by or implicit in the language of the Clause. Second, the purposes of the Clause are better served if it is understood to cover all the functions of modern government, not some narrow class of them. Third, the Framers appear to have thought that support for higher education was indeed a legitimate function of government. The Constitutional Convention considered a proposal to empower Congress to establish a national university, but rejected it on the ground that the power was already embraced within the District of Columbia Clause. See 2 M. Farrand (ed.), The Records of the Federal Convention of 1787 616 (1966). President George Washington, in his first and eighth annual addresses, called on Congress to consider establishing a national university. See 30 John Fitzpatrick (ed.), The Writings of George Washington 494 (1939); 35 id. 316-17.

17 The Canadian Charter is, in essence, a bill of rights. The Federal Government of Canada "enacted first the Canadian Bill of Rights, R.S.C., 1985, App. III, in 1960 and then the Canadian Charter of Rights and Freedoms in 1982, the latter having constitutional status. The values reflected in the Charter were to be the foundation of all laws, part of the 'supreme law of Canada' against which the constitutionality of all other laws was to be measured." McKinney v. University of Guelph, [1990] 3 S.C.R. at 355 (Wilson, J., dissenting).

18 But see McKinney, [1990] 3 S.C.R. at 274-75 (judgment of Dickson, C.J., and La Forest and Gonthier, JJ.) (noting certain differences between Canadian and American doctrines) (plurality op.); id. at 343-44 (Wilson, J., dissenting) ("This Court has already recognized that while the American jurisprudential record may provide assistance in the adjudication of Charter claims, its utility is limited . . . . The Charter has to be understood and respected as a uniquely Canadian constitutional document.").

19 Judge Sopinka concurred in the conclusions and reasoning of the Harrison plurality except on the question whether the mandatory retirement policy was "law" within the meaning of section 15(1) of the Canadian Charter. He would have preferred not to decide that question on the basis of the assumption that the university was part of the government. Harrison, [1990] 3 S.C.R. at 481. In McKinney, Judge Sopinka agreed that "a university is not a government entity for the purpose of attracting the provisions of the Canadian Charter of Rights and Freedoms. " [1990] 3 S.C.R. at 444. While not being willing to say that "none of the activities of a university are governmental in nature," he was of the opinion that "the core functions of a university are non-governmental and therefore not directly subject to the Charter. This applies a fortiori to the university's relations with its staff . . . ." Id. As in his opinion in Harrison, he preferred not to reach the question whether, if a university were part of the government, its mandatory retirement policies would be "law" for purposes of the Canadian Charter. Id.

20 Judge Cory agreed with Judge Wilson that the University of British Columbia formed part of the government for purposes of section 32 of the Canadian Charter, but disagreed with her on other grounds. Harrison, [1990] 3 S.C.R. at 481.

21 Since it is not necessary to our decision, we do not address Goddard's alternative argument that Federal employees in Leave Without Pay status do not occupy an Office of Profit or Trust within the meaning of the Emoluments Clause.

JAMES RAY SWEATBOX TRAGEDY -- GET RICH OR DIE FRYING, by Charles Carreon

10/20/09

Success – it’s an American obsession. Ever since I was a kid, I’ve been exposed to the culture of makin’ it. My dad was devoted to the philosophy of positive thinking, and given how he grew up -- alone on the streets of LA, sleeping in all-night nicolodeons, boxing professionally from the age of 18, graduating from a mail-order high school and eventually becoming a the first Hispanic legislator in the state of Arizona – he clearly made good use of it. His philosophy was pretty simple – get a good education, learn to do something worthwhile, and always do a better job than you were paid to do. His favorite book was “Think and Grow Rich,” and though he never got rich, he never stopped recommending the book. I suspect that just getting out of poverty and being able to raise his kids in decent style was enough for him.

But some people take getting rich very seriously. So seriously that they will take classes on how to get rich. Classes taught by people who, strangely enough, have uniformly gotten rich teaching other people to get rich. You see, real rich people never teach classes about how to get rich. Shrewd business practices, buying low, selling high, lobbying Congress for favorable legislation, garnering no-bid government contracts, and turning billions in losses into an international crisis so big that all the people in the world have to take on massive amounts of debt to bribe you into getting richer – that’s how you get rich! And those people won’t reveal their secrets for fear of prosecution, much less would they reveal them from a desire to help others to enjoy abundance.

Of course, that type of wealth-gathering is tasteless. Who would want to be one of those hated, ultra-rich investment bankers who view all other humans as the scut-suckers, whose trophy wives bless their unions with offspring groomed for greatness from the cradle to grad school? No, that would be depressing. That would be like giving in to the materialistic horribleness of life, and besides, that is a completely hopeless aspiration. Because becoming super-rich is nowadays a demanding job – the stress alone can kill you. One day, like Ken Lewis, you’re head of Bank of America, and everyone is praising you for doing pretty well in the financial crisis, then you approve four billion in bonuses for Merill Lynch in a midnight deal that everyone, including both the past and present heads of the Dept of the Treasury, is urging you to get done right now because you’re going to save the economy, so you do it, and then, a year later, you’re forced to resign in disgrace and don’t get a dollar for the last year’s worth of work. People like Lloyd Blankfein, head of Goldman Sachs, barely has time to work – he spends all his time insisting that, record bailouts and rising unemployment be damned -- bonuses are going to flow this year, more richly as ever, in fact, because “his people” deserve it. And then, here come Obama’s finger-shakers, crying “Shame!” on all the new shows and threatening to do – nothing…. Imagine the stress for these super-richies. Brutal, grinding stress that takes all the flavor out of a hundred dollar cigar, all the sparkle out of a diamond necklace, all the pleasure out of the plush comfort of your new Mercedes.

So, instead of pursuing wealth in the realistic, greedy, grasping style that actually works, many people aspire to achieve something ridiculous – getting rich by spiritual means. Leave aside the fact that Jesus said he’d lay odds on a camel making it through the eye of a needle before a rich man would get into heaven, that Buddha owned nothing his whole life, and that no spiritual teacher worth thinking about could by any stretch of the imagination be called a go-getter! Leave aside all that – Americans – who once proudly cranked out massive export tonnage from the world’s largest manufacturing plants and paid their way in the world – have become huge consumers of this spiritual wealth-gathering system that used to be confined to the back pages of the National Enquirer and Weekly World News. You know, the Secret Gypsy candle, the Virgin of Medjugorge, the Handkerchief of Solomon. Now we have the “Prayer of Jabez,” “The Secret,” and the whole realm of Deo-nomics.

God is rich, and he wants you to be rich! We need to build heaven on earth. The only reason you’re poor is because your mind is closed. Open it like a parachute, and the wind will pick you up like a dandelion and waft you away to the land of your dreams. While you’re there, visualize your ideal lifestyle – whatever you want – the awesome ride with twenty-inch wheels, the beautiful companion, the weekends in Vegas or the Bahamas, the imported champagne, the delicious meals. And more than that – visualize your body brimming with health, and your inner mental state as secure, confident, oozing positive feelings! Then think, “I have it all!” “That’s right, I have it all, right now.” It’s kind of like virtual reality. Some people say that through this type of mental exercise, you will “knock down barriers” to your higher self, “escape limiting self-definitions,” and “open the gates to limitless wealth on every level.”

But then there are more strenuous approaches to Getting Rich. Approaches that raise the bar for people who believe there’s no gain without pain. They have a special market to tap into – people who have a need to suffer. People who believe that if they suffer for the right reasons, while thinking the right thoughts, they will become someone greater, more fabulous, the kind of person who just “attracts wealth.” These kinds of programs usually offer “training” that sets you back a few thousand bucks, and that you are inclined to believe is valuable, since you paid good money to get it. When people feel suckered by these training programs, you rarely hear about it, because they don’t tell their friends. They just shake the dust off their shoes and move on.

One of these programs is “Harmonic Wealth,” (Registered Trademark 3062872), ginned up by James Arthur Ray, one of the authors of “The Secret,” who puts on free shows in which he manipulates vulnerable audience members in psychodrama interactions while his followers cheer and shout encouragement. The message they absorb is that Wealthy People are Superior People! To Get Money, You Must Get Wisdom! Not training, a degree, access to capital, an opportunity to sell your skills at a high price. No, Wisdom! Harmonic Wisdom! For those of you who already have degrees and can’t get ahead in the economy, this is the answer – you lack Harmonic Wisdom!

Once the cheerleading takes hold, they are signed up for Warriorship Training, in which they will be roundly abused at their own expense. Ray’s Warriors pay $9,000 to attend a three-day training that starts with getting their heads shaved, continues with a day of classroom instruction and self-indoctrination by listening to CDs and doing written lessons late into the night. Then he raises the stakes – he takes them out into the cold desert night and abandons them with nothing but notebooks, no food, water or shelter, for thirty-six hours. Then they get picked up, taken back to the ranch, given a little buffet to graze on, and then, they’re stuffed into an overcrowded plastic lean-to heated with loads of red-hot rocks that are doused with cold water to release clouds of stifling steam. On October 12th, Ray crammed fifty hungry, dehydrated people into such a torture chamber. With only 450 square feet, and a ceiling height of five feet at the center, there was precious little air to share, and Ray positioned himself next to the opening, where he could control the flow of air and coolness, and get maximum benefit when he opened the door briefly.

If that's a sweat-lodge, I'm Sitting Bull. Three people died, and nineteen were hospitalized with burns, dehydration, vomiting, and other signs of spiritual development. And while this lethal farce was unfolding, what was Ray doing? While his followers were keeling over, puking and dying, Ray was, of course, Tweeting! And what did he tweet in those hours of madness? “The Spiritual Warrior has conquered death and therefore has no enemies, no fear, in this life or the next.” And “For anything new to live something first must die. What needs to die in you so that new life can emerge?” Baaaad Guru.

Though he later tweeted “shocked and saddened … confused and frustrated,” he hasn’t slowed the pace of his schlock-slinging. The debacle in the high desert happened on October 12th, and seven days later he did a press release cautioning people to stop living vicariously through reality TV shows, and burst out with this urgent message: “The reason that 'reality TV' is such a hot item is because real life is not. You must master the secrets of the Newtonian world of physical action AND the quantum domain of your internal game. Once you have that combination, you can open the doorway to your dreams and your new reality every single time. This is for real!”

It appears to have escaped Ray that his disciples are REALLY DEAD! The closest this proud fool has come to facing reality is his admission that he was “being tested.” Yes, he’s right about that. The Yavapai County Sheriff is calling the deaths a homicide, and from the descriptions of how Ray behaved during the sweatbox experiment – apparently smug and confident, taking no interest in the people who had passed out and were dying – he is going to need serious legal representation.

Still, why were those people sitting there? Delusion, my friends! Delusion! The fond hope that somehow magic would accomplish what they hoped and desired fervently – a perfect world. Not a perfect world for everyone, which would be impossible to achieve, but rather a world in which they could feel perfect. They could obtain “Harmonic Wealth,” the sweet spot in the Universe where everything comes together and rainbow energies hum in sympathy with you, riches rain down, nice people tell you you’re beautiful, smart and capable, and you don’t have to think about global warming, AIDS in Africa, drone warfare on innocent civilian populations, and Dick Cheney’s family starting a new lobbying company. Y’know, when you put it that way, I’d kind of like to try it myself.

A SLIGHTLY DEEPER LOOK AT EXOBIOLOGY, THE STUDY OF THE ORIGIN OF LIVING FORMS, by Charles Carreon

01/16/10

Full Disclosure of the Writer's Agenda

I will preface by saying that I endorse "origin-of-living-forms" research, and am in no sense on a Creationist agenda. Perhaps that will result in a lowering of the spear-points that seem to be ever at the ready here, in search of heretical mumbo-jumbo dealers. I will also reveal that I have my own, completely unverifiable theories that I believe would be consistent with any scientific evidence regarding the origins of living forms that is likely to be uncovered during my lifetime. Finally, while I espouse a spiritual view of life, I am not a deist, theist, atheist, or nihilist. I am a classic "not this, not that, not both, and not neither" kind of guy. But enough about me, what about this video?

The Video Makes Some Big Claims for the Work of Dr. Szostak

The video argues that Dr. Szostak has managed to create self-replicating structures that would break up easily when buffeted about by rocks and waves, and then, by circulating back and forth between the hot and cold areas around suboceanic heat vents, would gradually acquire more complex materials inside their proto-cell membrane, inside which further replication of complex structures occurs, resulting in some of these little buggers getting bigger and some getting "competed" out of existence. This, says the video, explains the whole origin of life.

Not So Quick - What Does Dr. Orgel Say About Dr. Szostak's Work?

Dr. Leslie E. Orgel was an origin of life heavyweight:

Wikipedia on Orgel wrote: Together with Stanley Miller, Orgel also suggested that peptide nucleic acids - rather than ribonucleic acids - constituted the first pre-biotic systems capable of self-replication on early Earth. His name is popularly known because of Orgel's rules, credited to him, particularly Orgel's Second Rule: "Evolution is cleverer than you are". In his book The Origins of Life, Orgel coined the concept of specified complexity, to describe the criterion by which living orga,nisms are distinguished from non-living matter. He has published over three hundred articles in his research areas.

And Dr. Orgel, before he died a couple of years ago, said some interesting things about the origin of life problem:

Dr. Orgel wrote: [T]he central problem of origin-of-life research can be refined to ask, By what series of chemical reactions did this interdependent system of nucleic acids and proteins come into being?

Anyone trying to solve this puzzle immediately encounters a paradox. Nowadays nucleic acids are synthesized only with the help of proteins, and proteins are synthesized only if their corresponding nucleotide sequence is present. It is extremely improbable that proteins and nucleic acids, both of which are structurally complex, arose spontaneously in the same place at the same time. Yet it also seems impossible to have one without the other. And so, at first glance, one might have to conclude that life could never, in fact, have originated by chemical means.

Dr. Orgel wrote: Ingenious techniques devised by Cech and Jack W. Szostak of the Massachusetts General Hospital have modified naturally occurring ribozymes so that they can carry out some of the most important subreactions of RNA replication, such as stringing together nucleotides or oligonucleotides (short sequences of nucleotides). Quite recently Szostak found even stronger evidence that an RNA molecule produced by prebiotic chemistry could have carried out RNA replication on the early earth. He started by creating a pool of random oligonucleotides, to approximate the random production presumed to have occurred some four billion years ago. From that pool he was able to isolate a catalyst that could join together oligonucleotides. Equally important, the catalyst could draw energy for the reaction from a triphosphate group (three joined phosphates), the very same group that now fuels most biochemical reactions in living systems, including nucleic acid replication. Such a resemblance supports the idea that an RNA molecule could have behaved like, and preceded, the protein catalysts that today carry out the replication of genetic material in living organisms. Much remains to be done, but it now seems likely that some kind of RNA-catalyzed reproduction of RNA will be demonstrated in the not too distant future.

Volcanic Vents Might Be A Problem, Not The Answer

And Dr. Stanley Miller, who was the first to try cooking up life in a flask, has suggested that submarine vents might not be the deus-ex-machina that this video presumes, providing the sort of perpetual motion machine that will keep the proto-cells pumped up, competing, and "evolving," because the damn things are sort of destructive. Here's from an interview:

in an interview Dr. Miller said wrote:

Q: What about submarine vents as a source of prebiotic compounds?

A: I have a very simple response to that . Submarine vents don't make organic compounds, they decompose them. Indeed, these vents are one of the limiting factors on what organic compounds you are going to have in the primitive oceans. At the present time, the entire ocean goes through those vents in 10 million years. So all of the organic compounds get zapped every ten million years. That places a constraint on how much organic material you can get. Furthermore, it gives you a time scale for the origin of life. If all the polymers and other goodies that you make get destroyed, it means life has to start early and rapidly. If you look at the process in detail, it seems that long periods of time are detrimental, rather than helpful.

Conclusion: The Video Substantially Overstates The Conclusiveness of Dr. Szostak's Research

So, after subjecting the ideas in this video to a little inquiry, I conclude that Dr. Szostak's work is apparently some of the most promising work for answering this question -- how did living forms arise? The answer in a general sense is probably correct -- start with a "reducing atmosphere," one that unlike ours, isn't full of the elements and chemicals produced by billions of years of life, bombard with energy, overcome the chicken/egg problem so that either nucleic acids or proteins, probably nucleic acids, probably RNA, in fact, appears first. Allow the RNA to carry on the process of transmitting information from one "generation" to the next, until at last, De-oxyRNA, that is, DNA, arises, and then we can really start coding and storing to create the complex cellular forms existing today. Wonderful, wonderful, wonderful. However, using this video as what Humpty-Dumpty would call a "nice knock-down argument" will only work if they don't know how to work a browser and a search engine. In my opinion, somebody put this together to poke a sharp stick in the eye of the Creationists, and therefore it substantially overstates the conclusiveness of the Abiogenesis argument.

Is It Possible Life Forms Evolve to Accommodate Life, But Do Not Give Rise To Life Itself?

The question I have is, after all of this explaining the origin of living forms, have we entirely banished the possibility that intelligence is a vibrational, or otherwise physically imperceptible, aspect of the universe that is able to operate through physical forms as they become sufficiently complex? As I have often said, while you need a radio to pick up a radio program, and it emits human voices, there are no people in the radio. People are far too complex a phenomenon to fit in a radio. And it may be that a human is also too complex a phenomenon to shove into a bag of skin. Certainly cybernetics lends some support for my suggestion. Because no one could even attempt to simulate human decision-making processes until computers were developed, and the process gets easier and easier with every increase in computing power. In other words, hardware must be sufficiently complex to accommodate software. And software can be resident in any magnetic medium of sufficient capacity. Similarly, software has a potential state and a run-state, just as life forms have a seed state and an operational state.

Rejoice! The troubadour par excellence of the late twentieth century has risen from the crypt in which he had untimely entombed himself, and put to flight the rumors anticipating his final demise. In the performance captured in the Live in London DVD, Leonard Cohen is effusively grateful to his audience, and the audience reciprocates with unrestrained enthusiasm. During his brief opening words to the audience, he observes that he hasn't been in London in fourteen years, and that on that occasion, he was "Sixty years old -- just a kid with a crazy dream." The audience responds with hearty, affectionate laughter. After the intermission, he cracks another joke about his age, and thanks the audience for "keeping my songs alive."

He begins most of his songs with a brief recitation of the most memorable lyrics in his soft, rasping voice. Then he swings into the tune with familiar ease, as each member of his ensemble takes up their part with passionate discipline, warmth, and sincerity. Almost all of the songs are drawn from his familiar, well-loved repertoire, starting with "Dance Me To The End of Love," continuing through such stalwarts as "Bird On A Wire," "Tower of Song," and "Suzanne."

If there are weak points in the concert, it is when he sings a couple of songs -- "Boogie Street" and "My Secret Life," authored by his "collaborator," Sharon Robinson. Although they go down well, the lyrics are distinctly less complex. The feel-good moment of the concert is supposed to be Leonard's performance of a new political song, "Democracy," and while the song is heartening, its literalism contrasts awkwardly with the lyricism of Leonard's other works. Put simply, Leonard Cohen isn't Bruce Cockburn.

The closeout of the concert is an exquisitely long affair with one song about endings segueing into the next. "Take This Waltz" is the nominal last song. Then they return for "So Long Marianne," swing into "First We Take Manhattan," and wind down again with "Sisters of Mercy." After this second ending, Leonard reads the lyrics to a new song, "If It Be Thy Will," in which he alludes to the "obstacles" that brought him to the brink of despair and led him to surrender his fate, leaving it to the Almighty whether he should ever sing again. After his two backup singers render the song in a touching duet, he rolls into "Closing Time," "I Tried to Leave You," and "Whither Thou Goest." By the time Leonard says his last goodbyes, the audience has been filled to overflowing, and it feels as if the Universe has been enriched by an exchange of great affection and warmth.

I am sure that many people, like myself, had concluded that Leonard's dismal mumblings on "Ten New Songs" spelled the end of his creative time on this Earth. Fortunately, he was gifted with the "obstacles" to which he alluded, and the travail roused him from the tomb. As some of us know, the obstacles included having $5 Million stolen from him by his longtime assistant Kelly Lynch, a Buddhist of the Vajra Vampyre sect. No doubt this was a terrible experience for him, but the results have been good for all of us. Leonard has lost a modest fortune, but regained his immense creative power. In this performance, he stands before his audience in humble gratitude for helping him to reclaim this gift.

I live in Tucson, Arizona, where Augusta Resources is getting all the permitting done to put in an open pit copper mine. Allowing a company to dig an open pit copper mine in our vicinity is like a marriage that will require total commitment on the part of both partners.

At the very least, you are going to be left with one big hole in your countryside, and huge mountains of “tailings,” which is waste washed out of the ore. In the case of Augusta, they’re planning on dumping their tailings on Federal Forest land.

And then there’s the humongous amount of water that is required to wash the ore. Then there’s the smelters, that consume enormous amounts of energy and generate sulfur dioxide that turns into sulfuric acid and rains down on the land. Check out these tailing ponds, basically acid lakes — colorful but toxic!

Before entering into such a relationship, Arizonans should take a good, hard look at the suitor that is so zealous to take control of our assets.

Many people assume that the proposed Rosemont copper mine is being pursued by a well-established mining company with experience in the field of mineral extraction and a huge capital base that will enable it to accomplish what it promises. This is not the case.

Augusta Resources has never mined an ounce of minerals in any country. It is a Canadian paper creation powered by paperwork that is not highly regarded by the investment community. Let’s look at the financial numbers that are publicly available. In a July 21, 2009 press release, Augusta stated that it “strongly believes the project can sustain debt financing of 65%–70% of the total project capital cost, which amounts to approximately $625 million.” It “has no revenues from operations and does not expect to generate any revenues from operations in the foreseeable future,” and “the funds for the planned activities in 2009 and 2010 are expected to be raised from additional debt and equity financings.” It is currently living entirely on borrowed money. As of September 2009, it had only $14 Million in cash on hand and total liabilities of $40 Million, and recently raised $32.5 Million in an offering of common stock to fund its operations.

Meanwhile, Augusta has taken advantage of Arizona’s pro-mining water law to start drilling wells just south of Tucson that will very likely deprive thousands of residents and the City of Tucson of water for basic living purposes. Augusta will be able to pump 6,000 acre-feet of water a year, that’s 2 Billion gallons a year — worth about $5 Billion dollars when sold a gallon at a time to thirsty Arizonans. Augusta’s wells will deprive us of that water and provide nothing like a fair return on its value. Supposedly, Augusta will “recharge” the wells with CAP water, but what guarantee is there that it will ever perform this promise?

With 70% debt financing, if Augusta can’t meet its obligations, there is a great risk it will simply melt away, leaving Tucson poorer in copper, water, and quality of life. If Augusta is serious about pursuing this project, it should be required to post a performance bond for the entire cost of remediating all of the environmental damage, water use, and transportation expense that it will bring to the area. But where could they borrow that kind of money?